Why Is MLB Claiming Revenue From Obviously Fair Use Videos On YouTube?

from the forks-and-sandwiches dept

Nearly a decade ago, we wrote a bunch about an excellent book called Copyfraud, by law professor Jason Mazzone, which went into great detail about how the legacy entertainment industry companies have used copyright in ways that are clearly against copyright’s intent — to the point that they border on fraud. The concept of copyfraud should be referred to more frequently, and here’s a perfect example. Just a couple months ago, we wrote about the amazing social media account of Jimmy O’Brien, who goes by @Jomboy_ on Twitter. He’s combined his love of baseball, his video editing skills, his ability to read lips incredibly well, and with a sarcastic, dry sense of humor to make a ton of amazing videos about various things happening in baseball. We highlighted a bunch last time around and his profile has only grown a lot since then, including among Major League Baseball players.

About a month after that post, Jomboy may have had his biggest moment so far, in putting together a truly amazing video of NY Yankees manager Aaron Boone getting ejected — following a bunch of players and Boone arguing with a young umpire over some bad calls. What took the video from normal great to amazing was that it revealed exactly what Boone was saying to the ump during their argument thanks to a bunch of “hot mics” from the broadcast. That allowed us to learn a lot more about this argument than anyone normally does in watching a manager scream at an ump:

That video alone went crazy viral and launched an even more viral meme in the phrase “fucking savages,” that is now on tons of t-shirts. Yankee fans have embraced it. The players have embraced it. By any stretch of the imagination, this was actually great for the game of baseball.

So, of course, Major League Baseball wants to kill it. Because that’s what MLB does. MLB’s head of discipline (and a former Yankee manager himself), Joe Torre is apparently really really upset about these hot mic videos that have gotten fans so excited about the game. Because how dare fans learn about the personalities of the people in the game.

The preponderance of that information has become more common lately, as microphones have picked up what?s said on the field, leaving little to the imagination. Torre will take the information, but he?d rather it wasn?t available to anyone with a Twitter account.

?That?s not the way I want to hear it, for everybody else to hear it,?? Torre said Tuesday at Yankee Stadium. ?I wish I could hear it, only. It makes it easy to make my decision.?

Apparently, Torre met with Boone to “discuss” the hot mic “issue” (there is no issue), leading one of the Yankees’ beat reporters, Bryan Hoch, to point out that this meeting was really happening because someone like Jomboy made a video:

So, first of all, this is incredibly dumb on MLB and Torre’s part. Torre, of course, has famously had his own hot mic moments during ejections as well.

But it gets dumber, and it involves out and out copyfraud.

In response to Hoch’s comment, a Twitter user joked that MLB doesn’t want Jomboy “profiting off their backs.” To which Jomboy noted that MLB “claims” all of his videos on YouTube, so when he has videos that get millions of views (as many of his do), it’s MLB collecting the revenue.

Someone rightly points out that “it seems way beyond fair use” and Jomboy notes that he tried that once, but YouTube rejected it:

This all seems ridiculous for a whole variety of reasons. First off, this does appear to be quintessential fair use. It’s a (tiny) portion of the video. It’s done for reporting purposes, it’s arguably transformative (the videos show a very different side of the game), and it seems to only increase the potential market for baseball, not decrease it. But, because of the system YouTube has set up here, MLB gets the money.

No one is watching these videos as a replacement for MLB content. They’re watching it to get Jomboy’s insight, humor, lip reading skills and such. And yet, MLB is getting the money.

That’s blatant copyfraud.

I’m sure O’Brien has little interest in antagonizing MLB (which should be celebrating him rather than worrying about his videos), so he probably has no interest in fighting this with a lawyer. But, again, that demonstrates MLB’s abuse of power here. It knows that it can take the money from Jomboy’s work and he can’t push back very hard or he’ll run into other problems with MLB.

Either way, I’m wondering about all those folks who show up in our comments saying stuff about how strong copyright is necessary to “protect creators” feel about this situation? Here a creator is getting robbed of revenue he should legitimately have earned, because YouTube is handing it to a giant corporation instead.

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Companies: mlb, youtube

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Comments on “Why Is MLB Claiming Revenue From Obviously Fair Use Videos On YouTube?”

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20 Comments
Anonymous Coward says:

Re: Lack of integrity

This isn’t really about copyright, is it? Copyright law has no concept by which the copyright owner can "claim" Youtube videos. This is probably another instance of a private right granted by Youtube on pretense of copyright, which would make it technically not copyfraud.

Anonymous Anonymous Coward (profile) says:

Re: Re: Lack of integrity

MLB claims copyright over every broadcast made by news outlets, even though they weren’t the ones taking the pictures. That might be in the agreement where the allow the broadcasters to record the games, I’m not sure.

But they have claimed the monetary value of Jomboy’s videos because the original video which Jomboy edits and enhances, is theirs, and MLB won even when fair use was claimed. Now whether that is right or not, it is. But it also shows that because it is the control of the copyright that caused that shift in monetary value and the failure of the fair use claim makes it about copyright.

Anonymous Coward says:

Re: Re: Re: Lack of integrity

I think it’s funny as fuck every time these copyright apologists keep leveraging what IP laws say or don’t say to claim the benefits of reporters and reviewers, under the argument that copyright law hasn’t been updated to keep up – but when copyright law is framed as the loophole or problem, watch them backpedal and insist that "it’s not copyright’s fault".

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:2 Lack of integrity

What gave you the impression that I like copyright, the way it is promulgated today? I think they should go back to 14 years with a paid for extension and no ability to transfer it to anyone else, contract or not.

If you think explaining the way things work today to someone who asked is pro copyright, then you need to address your ability to discern motives.

Anonymous Coward says:

Re: Re: Re:3 Lack of integrity

You misunderstand me. I certainly don’t think you’re pro-copyright. I was commenting on the irony of copyright being used to strong-arm other purposes – ranging from trolling grandmothers for porn money to shutting down critique videos on YouTube – and when this is brought up, copyright fans regularly squeal that it’s "not copyright’s fault".

"These" was referring to the likes of the AC you were responding to. Beg pardon for the confusion.

Anonymous Coward says:

Re: Re: Re:4 Lack of integrity

"These" was referring to the likes of the AC you were responding to. Beg pardon for the confusion.

That wasn’t in support of copyright or MLB either, it was pointing out that, unlike a DMCA claim, the system here gives people no rights. Copyright has a concept of fair use; Youtube gives large corporations a way to bypass copyright law and the very limited safeguards it provides.

It sucks, but if you’re going to try to get MLB charged with fraud you’re not going to get far.

ivanwolf (profile) says:

Re: Re: Missing The Point

To a great extent, you are probably right about that, and also somewhat probably wrong. Copyright had been expanded and bastardized well beyond the original intent, and allowed this current ownership culture to become what it is. For everyone that says it is about paying the creators, they are mostly wrong. Copyright was primarily established to make sure the publisher was able to recoup costs, plus some profit, to get the materials printed and distributed to the widest possible audience. When it comes to books and printed materials like newspapers and magazines, that publishing(copying) cost has diminished greatly. The creating content cost has gone up, and there should be a good mechanism to recoup those costs. That may take a new legal framework to achieve in a manner that benefits those that actually create the content, rather than the gatekeepers. Copyright, as instituted, fails society as a whole. It needlessly locks up works that other current creators could generate new works from, or in this case could benefit they guy who puts in so much time to make the great content he creates. In a truly competitive environment, MLB should be paying him for the interest he creates in their product, rather than them taking away a possible revenue stream of his. It is sad that copyright has become a mechanism for large corporations to limit content that citizens get……

Rico R. (profile) says:

A thought experiment I had about fair use and sporting events...

I kid you not, I thought of this in the shower earlier today. Suppose for a second that instead of re-using actual footage from TV (which is copyrighted to MLB), they used their own footage they captured in the stands. Regardless of whether everything else was the same (providing transformative commentary on various parts of the game) or not, then MLB could NOT raise any successful copyright infringement complaints. I still think they would try, but I think such an action could lose in court.

Legally speaking, even though using TV footage under the right circumstances would still be fair use, if they tried to claim copyright infringement on footage the uploader had shot from the game, the uploader could counter-claim for copyright misuse. Recording gameplay on the camera in your phone means you own the copyright to that footage, and the underlying gameplay is not copyrightable the same way as, say, a recording of a concert or a Broadway musical. This same theory could also be tested with NFL and NBA games. (And that’s not to mention that their "account of the game" statement in their copyright disclaimers can’t legally hold water under the fair use doctrine!)

Darkness Of Course (profile) says:

But, but, the little guys can't sue YouTube

The leverage of having a dozen attorneys on staff.

I always liked the various sports teams/places claiming that no video or audio or photos are allowed, because they own all the copyrights from the game.

Hmm, copyright law references the ‘person’ doing the creating. Which would be the fan, with the capture device.
Not some schmuck up in the penthouse barely paying attention to the game.

Anonymous Coward says:

The Content ID concept, though greedy, seems "fair" enough. Content ID is defacto licensing for YouTube users. In other words, the rightsholder agrees not to issue DMCA takedowns to YouTube or its users in exchange for submitting the content through its Content ID system. Sure, they can change the policies at any time, but doing so comes with no lasting account penalty for the user.

Regarding fair use, they simply assume more people will not contest the notices they get, which is merely monetization. If and when they do contest the claims, MLB simply says "yep the content is ours" since they don’t have to sincerely take fair use into consideration. Then both to go through Step 2, which is a second appeal. At that point the MLB has to either take it down (which they would, just to prove a point) or leave it up, and when that happens you have to counter-notice and have the video down for a minimum of 10 business days.

Welcome to YouTube. I have several thousand videos on the platform spread across roughly 5 channels, and in exchange for free hosting, you have to put up with the fact you are on the second most visited and scrutinized website in the world.

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